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Practical Articles
  • The New Fair Work Act 2009
    Author: Anil Herat
    Firm: Legal Recovery Solutions
    Date: November, 2009
    Times viewed:
  • PROTECTING YOUR INTELLECTUAL PROPERTY RIGHTS
    Consistency is the key in brand development.
    Author: Andrew Nicholson
    Firm: Mullins Lawyers
    Date: August, 2006
    Times viewed: 1119
  • Another Way Around Amcor?
    The Australian Industrial Relations Commission recently found that employees were not entitled to severance payments on redundancy when they were offered acceptable alternative employment with a new employer.
    Author: John Naughton
    Firm: Allens Arthur Robinson
    Date: August, 2005
    Times viewed: 723
  • Federal Court Restrains CEPU
    A recent Federal Court decision provides an example of the interaction between certified agreements, common law contracts and the law of torts.
    Author: Nico Burmeister
    Firm: Allens Arthur Robinson
    Date: August, 2005
    Times viewed: 752
  • Industrial Manslaughter Laws in NSW: Directors and Managers Beware
    Workplace deaths are still a major concern within our community as illustrated by the vehement protests following the death of a 16-year-old apprentice from a construction site in October 2003.
    Author:
    Firm: Toomey Pegg Drevikovsky
    Date: August, 2005
    Times viewed: 1237
  • A Crystal Ball on the Federal Government's Workplace Reforms
    As with most areas of law the devil is in the detail, and workplace relations is no different. While any detailed analysis awaits the Federal Government producing its legislation, it nonetheless has made its intentions with regard to workplace relations known.
    Author: Will Ward
    Firm: Toomey Pegg Drevikovsky
    Date: July, 2005
    Times viewed: 838
  • Workplace Surveillance Act passed in New South Wales
    The rights of New South Wales employers to conduct covert surveillance of their workplaces will be severely restricted when the Workplace Surveillance Act 2005 commences.
    Author:
    Firm: Allens Arthur Robinson
    Date: July, 2005
    Times viewed: 1565
  • Workplace Policy Fails to Prevent Employer Liability
    The Victorian Civil and Administrative Tribunal has found an employer failed to take reasonable precautions to prevent sexual harassment, despite having developed a sexual harassment policy for the workplace.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: July, 2005
    Times viewed: 730
  • Union Representation for Non-Union Agreement
    A Full Court of the Federal Court recently accepted the right of the Australian Industrial Relations Commission to direct an employer to allow a union representative to be present during negotiations for a non-union agreement.
    Author: Rebecca Davern
    Firm: Allens Arthur Robinson
    Date: June, 2005
    Times viewed: 585
  • Howard Announces Workplace Reforms
    On Thursday 26 May, the Prime Minister announced a number of important workplace reforms and as a result, employers will confront a vastly different set of workplace laws if these reforms become legislation.
    Author: Peter Arthur
    Firm: Allens Arthur Robinson
    Date: June, 2005
    Times viewed: 1872
  • Queensland IR Reform
    The Queensland Government has taken the opportunity to further reform its Industrial Relations Act 1999 (Qld) and to address some ongoing anomalies.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: May, 2005
    Times viewed: 675
  • Show Me More than the Money
    The High Court has confirmed that reinstatement of an employee means more than just payment of remuneration and requires full restoration of pre-termination duties. This article looks at the impact of the appeal on employment relationships.

    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: May, 2005
    Times viewed: 577
  • EBA Expiry Date Upheld
    A Full Bench of the Australian Industrial Relations Commission (AIRC) has restricted the discretion of the AIRC when considering termination of expired certified agreements. This article examines the decision and its impact on the AIRC's role when reviewing the public interest.
    Author: Dr Kirk Lovric
    Firm: Allens Arthur Robinson
    Date: April, 2005
    Times viewed: 761
  • Liability of Directors for Industrial Manslaughter
    In January 2005, a UK managing director was sentenced to 16 months' imprisonment for manslaughter following a workplace fatality. This article examines the case and the potential to use common law manslaughter to prosecute directors in the UK and Australia.

    Author: Dr Kirk Lovric
    Firm: Allens Arthur Robinson
    Date: April, 2005
    Times viewed: 1097
  • Electrolux: and the Full Bench says...
    A Full Bench of the Australian Industrial Relations Commission has delivered a much anticipated decision on whether a range of contentious certified agreement clauses involve matters pertaining to the employment relationship.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: April, 2005
    Times viewed: 723
  • Certified Agreements After Electrolux: Latest Developments
    Since the High Court handed down its decision in Electrolux in September 2004, there has been constant conjecture about the certification of enterprise agreements at a federal level. This is an update on how the Australian Industrial Relations Commission (AIRC) and the Federal Court have approached the matter of certifying agreements post-Electrolux.
    Author: Matthew Follett
    Firm: Freehills
    Date: March, 2005
    Times viewed: 669
  • Corporate Governance and Executive Contracts
    One of the most difficult tasks facing any board of directors is the appointment of a new chief executive officer (CEO) and managing director. Apart from the practical issues in finding an appropriate candidate in a tight market, boards must also negotiate the ever increasing corporate governance minefield in determining the remuneration and conditions of a new CEO.
    Author: John Colvin
    Firm: Freehills
    Date: March, 2005
    Times viewed: 768
  • AWAs Do Not Prevent State Conciliation and Arbitration
    A Full Bench of the New South Wales Industrial Relations Commission has concluded that the Commission has power to conciliate and arbitrate an industrial dispute relating to an employee whose terms and conditions are covered by an Australian Workplace Agreement (AWA).
    Author:
    Firm: Allens Arthur Robinson
    Date: March, 2005
    Times viewed: 614
  • Common Rule Awards in Victoria - Now a Reality
    Significant changes affect all Victorian employers as a result of the Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003. The most important areas of change provided improved protection for non-award employees as well as common rule application of Federal awards in Victoria to take effect from 1 January 2005.
    Author: Simone Szalmuk- Singer, Consultant and Kathryn Dalton, Partner, Workplace Relations Group
    Firm: Herbert Geer
    Date: March, 2005
    Times viewed: 617
  • Employers Not Required to Negotiate
    The Queensland Industrial Relations Commission has ruled that an employer cannot be forced to negotiate a certified agreement.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: February, 2005
    Times viewed: 608
  • Federal Court Weighs-In on Electrolux
    The Federal Court has had an opportunity to consider the range of matters pertaining to the employment relationship, in a recent decision involving a challenge to the protected status of industrial action.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: February, 2005
    Times viewed: 611
  • Risk Assessment: not a job for the boys
    A recent decision of the Industrial Court of Queensland illustrates the strict obligation on employers to conduct proper risk assessments and to use administrative controls for a risk only as a last resort.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: January, 2005
    Times viewed: 588
  • The End of the Unfair Breach of Contract Claim
    Conduct in breach of a contract does not, of itself, make the contract unfair or give the Industrial Relations Commission of New South Wales the ability to review it. A recent decision overrules the Commission's previous approach, but may not limit the Commission's powers greatly.
    Author:
    Firm: Allens Arthur Robinson
    Date: January, 2005
    Times viewed: 739
  • Common Rule Awards
    As a result of legislative amendments made at the beginning of 2004, many federal awards have been declared common rules in Victoria and will become binding on affected employers from 1 January 2005
    Author:
    Firm: Allens Arthur Robinson
    Date: January, 2005
    Times viewed: 617
  • Directors Personally Fined over Workplace Bullying
    A NSW Industrial Relations Commission decision serves as a clear warning that token fines in workplace bullying cases are not adequate penalties for a director.
    Author:
    Firm: Allens Arthur Robinson
    Date: December, 2004
    Times viewed: 1012
  • Service of Employer's Notice of Lockout
    The Federal Court has found that an employer's lockout was protected action, despite notice of the lockout being served on some employees after the lockout started.
    Author: Stacey Kelly
    Firm: Allens Arthur Robinson
    Date: December, 2004
    Times viewed: 657
  • Electrolux Uncertainty Continues
    Since the High Court's Electrolux decision (deciding that all clauses in a certified agreement must pertain or be incidental to the employment relationship), differing views are emerging from the Australian Industrial Relations Commission about the proper characterisation of particular clauses.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: December, 2004
    Times viewed: 716
  • Right of Entry Requirements
    The Full Bench of the Australian Industrial Relations Commission has prevented the ANZ Bank from imposing conditions on the Finance Sector Union's right of entry, after the bank argued it would be a breach of privacy.
    Author: Stacey Kelly
    Firm: Allens Arthur Robinson
    Date: November, 2004
    Times viewed: 821
  • Vicarious Liability of Employers in Sexual Harassment Claims
    The precautions taken by employers to prevent sexual harassment in the workplace need only be reasonable, not ideal.
    Author:
    Firm: Allens Arthur Robinson
    Date: October, 2004
    Times viewed: 911
  • Disability Discrimination Act Review
    This article examines the recommendations on reasonable adjustment and unjustifiable hardship contained in the Productivity Commission's final report on the Disability Discrimination Act.
    Author: Rebecca Davern
    Firm: Allens Arthur Robinson
    Date: September, 2004
    Times viewed: 630
  • Court of Appeal's Solution to Direct Dilemma over Unfair Contracts
    The NSW Court of Appeal recently prevented the NSW Industrial Relations Commission from hearing an unfair contract claim about a commercial contract – before the Commission even had an opportunity to consider whether it could hear the claim.
    Author: Louise Keats
    Firm: Allens Arthur Robinson
    Date: September, 2004
    Times viewed: 665
  • Pssst…You’re Selected for Redundancy!
    Have you ever taken part in a redundancy selection exercise where a manager has suggested that affected employees not be consulted or given notice of impending redundancies? Or where you have been sworn to secrecy in order to protect your employer from the departure of other employees?
    Author: Seamus Burke
    Firm: Abbott Tout
    Date: September, 2004
    Times viewed: 765
  • CFO: Chief Financial ‘Offender’
    Chief Financial Officers should enforce all of an employer’s policies and also lead by example, a recent decision of the Industrial Relations Commission of New South Wales has confirmed. Employers, it seems, are entitled to expect that employees, particularly those entrusted with a sponsored credit card should act honestly and responsibly. If they don’t, then the likely result is the termination of employment.
    Author: Seamus Burke
    Firm: Abbott Tout
    Date: September, 2004
    Times viewed: 533
  • Termination of Employment Not "Industrial Action"
    A Full Bench of the Australian Industrial Relations Commission has recently decided that termination of employment is excluded from the definition of ‘industrial action’ for the purposes of section 127 of the Workplace Relations Act 1996 (Cth). The decision is important because it means that dismissal/redundancy decisions by employers cannot be halted by unions under the guise of section 127 proceedings in the AIRC.
    Author: Paul Burns
    Firm: Freehills
    Date: August, 2004
    Times viewed: 633
  • Lying Employees Pay the Cost
    Two employees who were found to be lying about attending a strip show during work hours have had costs awarded against them in a decision of the Queensland Industrial Relations Commission (QIRC).
    Author: Michelle Berry and Jo Glynn
    Firm: Freehills
    Date: August, 2004
    Times viewed: 646
  • Dismissal Obligations on Employers of Non-Award Covered Employees
    The Victorian Supreme Court of Appeal has handed down an unequivocal judgment regarding the rights of an employer to terminate an employee at common law without observing procedural fairness or the rules of natural justice.
    Author:
    Firm: Freehills
    Date: August, 2004
    Times viewed: 1131
  • Guidance about $200K Cap Still Some Time Off
    The eagerly anticipated Full Bench decision in Aveling, concerning a high-earning executive's unfair contract claim, is still a number of months away.
    Author:
    Firm: Allens Arthur Robinson
    Date: August, 2004
    Times viewed: 636
  • New Age-Discrimination Legislation
    New federal legislation outlaws discrimination in employment on the ground of age, where age is the dominant reason for the discrimination.
    Author:
    Firm: Allens Arthur Robinson
    Date: August, 2004
    Times viewed: 753
  • Federal Court finds picketing might be protected action and certified agreements might have contractual effect
    In a recent decision, Justice Finkelstein of the Federal Court reopened the debate surrounding the legal status of 'picketing' and whether certified (or unregistered) agreements can operate and have effect as contracts at common law.
    Author: Paul Burns
    Firm: Freehills
    Date: May, 2004
    Times viewed: 787
  • Awards as a 'safety net': Undermined by the Federal Court
    The Federal Court has recently upheld the insertion of redundancy provisions in a public sector award which reflected the current entitlements of the employees under the relevant certified agreement. In doing so, the Court left open the very real possibility for awards to be varied above what might commonly have previously been understood to be 'a safety net of minimum wages and conditions of employment'.
    Author:
    Firm: Freehills
    Date: May, 2004
    Times viewed: 660
  • It's Mine Because I Made It! Who owns employee inventions?
    Imagine the scenario. Your star employee is employed to research and develop new products for your company. This employee loves to invent new things. You find out that this employee has, mainly in her own time and partially during work hours, invented a product with huge profit potential. The employee has patented the product and has set up a company to sell the product.
    Author: Kathryn Dalton
    Firm: Herbert Geer
    Date: May, 2004
    Times viewed: 816
  • Transmission of Business
    The Federal Parliament passed the Workplace Relations (Transmission of Business) Bill 2002 on 1 March this year. The Bill gives the Australian Industrial Relations Commission the power to order that a certified agreement that would transmit to a new employer under the current law has no binding effect on the new employer, or only binds to a specified extent or for a limited period.
    Author: Peter Arthur
    Firm: Allens Arthur Robinson
    Date: April, 2004
    Times viewed: 780
  • Proposed Workplace Relations Act Amendments
    The aggregate effect of proposed legislative changes in the federal workplace relations area will be to strengthen the bargaining scope and position of employers.
    Author: Peter Arthur
    Firm: Allens Arthur Robinson
    Date: April, 2004
    Times viewed: 543
  • NSW to Regulate 'Cybersnooping' at Work
    The NSW Attorney-General is about to release a draft exposure Bill to require employers to make employees aware of any form of workplace surveillance or first obtain a court approval to conduct surveillance.
    Author:
    Firm: Allens Arthur Robinson
    Date: April, 2004
    Times viewed: 717
  • Are Your Private Emails Really Private?
    Research in the United States has shown that although 92% of employers monitor the email of their employees, not all of them have properly informed their employees about this. Australia is now beginning to legislate to ensure that fair and equitable guidelines are being followed.
    Author: IT/IP News
    Firm: Hopgood Ganim Lawyers
    Date: April, 2004
    Times viewed: 546
  • Federal Court Confirms Availability of Protected Industrial Action within Life of a Certified Agreement
    The Federal Court has confirmed that matters which were not settled by a certified agreement can be the subject of legitimate industrial action during the life of that agreement. The implications of this, including steps employers can take to reduce their exposure, is discussed in greater detail at the end of this article.
    Author:
    Firm: Freehills
    Date: March, 2004
    Times viewed: 569
  • NSWIRC Unfair Contracts Jurisdiction Limited to Work-related Contracts
    In the much awaited 'Mitchforce decision', the NSWIRC, by majority, came into line with the view expressed in the New South Wales Court of Appeal and held that contracts or arrangements will not come within the NSWIRC's unfair contracts jurisdiction unless the relevant contract or arrangement provides directly for the performance of work.
    Author: Glenn Fredericks
    Firm: Freehills
    Date: March, 2004
    Times viewed: 586
  • NSWIRC Unfair Contracts Jurisdiction Limited by Federal Awards
    In December 2003, a Full Bench of the New South Wales Industrial Relations Commission in Court Session (NSWIRC) handed down a decision regarding the scope of its jurisdiction under section 106 of the Industrial Relations Act 1996 (NSW) (IR Act).
    Author:
    Firm: Freehills
    Date: March, 2004
    Times viewed: 479
  • Not Everybody Loves Spam: New rules to stop unsolicited emails
    The Spam Act, which came into effect on 12 December 2003, is designed to tackle the proliferation of unsolicited emails and other electronic messages, frequently used by marketeers that not only clog-up recipients' inboxes and slow productivity, but often carry offensive and illegal content such as pornography and financial scams. This article outlines some steps for employers.
    Author: Glenn Fredericks
    Firm: Freehills
    Date: March, 2004
    Times viewed: 605
  • Will a Deed Release You from Everything?
    A recent case in the Federal Magistrates Court has strengthened the argument that a deed of release in settlement of one claim that intends to discharge an employer from all other claims will be legally enforceable.
    Author:
    Firm: Freehills
    Date: March, 2004
    Times viewed: 1254
  • Pregnancy Prohibits Promotion
    If you feel like you have read countless cases on flexible working arrangements over the last five years then you are right. If you feel like employers lose most of them, you are right again.
    Author: Kate Jenkins
    Firm: Freehills
    Date: March, 2004
    Times viewed: 357
  • “From Redundancy to Re-Instatement” - the Journey of Two Injured Workers
    Employers were recently given an alarming reminder by the Australian Industrial Relations Commission of the importance of implementing fair and lawful selection procedures when downsizing. In a recent case, an employer was ordered to reinstate two injured employees as well as pay them 18 months’ back pay.
    Author: Kris Growcott and Simone Szalmuk-Singer
    Firm: Herbert Geer
    Date: March, 2004
    Times viewed: 641
  • Attention Victorian employers – recent changes to Victorian legislation affect you!
    The Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 took effect on 1 January 2004. Important areas of change which will affect many Victorian employers include improved protection for non-award employees, and common rule application of Federal awards in Victoria.
    Author: Michaela Moroney
    Firm: Herbert Geer
    Date: March, 2004
    Times viewed: 622
  • Union Recognition Clauses OK
    Parties to a certified agreement are free to recognise that a particular union has a role in the workplace without offending freedom of association principles. Partner Jamie Wells reports on the certification of the McDonald's multiple business agreement.

    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: March, 2004
    Times viewed: 434
  • Family Responsibilities Balanced Responsibly
    An employer's decision to relocate a workplace has been upheld on appeal as being non-discriminatory, even though relocation impacted seriously on an employee's family responsibilities. Partner Jamie Wells reports.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: March, 2004
    Times viewed: 552
  • Lack of Suitable Position No Bar to Reinstatement
    Full Bench of the Australian Industrial Relations Commission has found that a lack of suitable positions for employees who are unfairly dismissed is not a bar to reinstatement. Law Graduate Scott Aspinall reports.
    Author: Scott Aspinall
    Firm: Allens Arthur Robinson
    Date: March, 2004
    Times viewed: 595
  • Latham Labor Industrial Relations Policy
    With a federal election on the horizon, Lawyer Nico Burmeister considers how the industrial relations landscape may change, should the ALP gain power.
    Author: Nico Burmeister
    Firm: Allens Arthur Robinson
    Date: March, 2004
    Times viewed: 634
  • Circulating Pornographic Emails at Work Held to Justify Termination
    b>Facts
    Mr Williams began working at Centrelink in October 2000. In November 2002 he became a harassment contact officer for the Ballarat office and was provided with information about Centrelink policies and relevant legislation.

    During his employment Mr Williams sent 23 inappropriate emails on Centrelink’s email system to internal and external recipients. These emails included pornographic pictures. One email sent by Mr Williams was received by a Centrelink employee in Coffs Harbour. Notification of this email prompted investigation into email use at the Ballarat office.
    Author: Nicholas Ruskin
    Firm: Phillips Fox
    Date: February, 2004
    Times viewed: 825
  • Who owns employee produced inventions?
    The case of Spencer Industries Pty Limited (Spencer Industries) v Collins is a timely reminder of the principles to be applied in Australia in determining an employer's right to the inventions of an employee. It also provides some interesting observations on some other matters relating to the employer/employee relationship in this area.
    Author:
    Firm: Freehills
    Date: February, 2004
    Times viewed: 746
  • Section 151C Workers Compensation Act 1987 Finally Determined
    On 12 December 2003, the High Court of Australia refused the worker’s
    application for special leave to appeal from the decision of the NSW Court of Appeal in National Direct Imaging Pty Ltd v Lamy.
    Author: Stephen Harris
    Firm: Moray & Agnew
    Date: February, 2004
    Times viewed: 581
  • Employees in Suits – Approach With Care
    Employers in New South Wales must ensure that dealings with employees starting unfair contract actions while still employed do not amount to criminal contempt1. Senior Associate Andrew Cardell-Ree reports.
    Author: Andrew Cardell-Ree
    Firm: Allens Arthur Robinson
    Date: February, 2004
    Times viewed: 657
  • What is the Value of a Good Record in OHS?
    A recent New South Wales Industrial Relations Commission decision2 indicates that a good occupational health and safety (OHS) record may do little to minimise the penalty imposed by a tribunal in a prosecution for breach of OHS legislation. Consultant Ric Morgan reports.
    Author: Ric Morgan
    Firm: Allens Arthur Robinson
    Date: February, 2004
    Times viewed: 626
  • Common Rule Awards for Victoria
    The Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 (Cth) came into effect on 1 January 2004 and reintroduces a system of common rule awards in Victoria. Lawyer Rosemary Bryant-Smith reports.
    Author: Rosemary Bryant-Smith
    Firm: Allens Arthur Robinson
    Date: February, 2004
    Times viewed: 898
  • Major changes to affect all Victorian employers
    As a result of complementary legislation passed by the Victorian and Federal Parliaments, Victorian employees who are currently not covered by federal awards, agreements or Australian Workplace Agreements (AWAs) will be covered by an expanded regime of minimum terms and conditions of employment, many of which commenced from 1 January 2004.
    Author:
    Firm: Freehills
    Date: January, 2004
    Times viewed: 342
  • Employers, have you properly notified employees of their representation rights?
    A recent Australian Industrial Relations Commission (AIRC) decision highlights the importance of using appropriate wording in notices to employees of intention to make a non-union certified agreement under the Workplace Relations Act 1996.
    Author: Martin Osborne
    Firm: Deacons
    Date: January, 2004
    Times viewed: 481
  • Liquidation – leave not required by employees in AIRC proceedings
    Insolvency practitioners should be aware that employees of a company in liquidation can apply or continue proceedings for unfair dismissal in the Australian Industrial Relations Commission (AIRC) without seeking leave of the Court, impacting Section 471B of the Corporations Act.
    Author: Martin Osborne
    Firm: Deacons
    Date: January, 2004
    Times viewed: 465
  • AIRC Moves to Clarify Boundaries of Right of Entry Provisions
    In recent times, unions have increasingly utilised the ‘right of entry’ provisions under the Workplace Relations Act 1996 (Cth) (WR Act) as a means of improving their workplace profile, to recruit new members and to attack employer sponsored workplace initiatives. Not surprisingly, this development has resulted in a number of disputes coming before the Australian Industrial Relations Commission (AIRC) in relation to the operation of the right of entry provisions.
    Author: Paul Burns
    Firm: Freehills
    Date: January, 2004
    Times viewed: 466
  • Beware the Illegal Acts of Third Parties
    A recent decision of the NSW Industrial Relations Commission demonstrates that employers may be liable under the NSW Occupational Health and Safety Act, even if the risk to employees stems from the unlawful acts of non-employees10. Law graduate Louise Keats reports.
    Author: Louise Keats
    Firm: Allens Arthur Robinson
    Date: January, 2004
    Times viewed: 604
  • Positive Discrimination Out of Favour
    Refusing an employee's request to return to work part-time after maternity leave is not discriminatory, so long as there are reasonable grounds for the refusal, according to a judgment handed down this month in the Federal Magistrates Court13. Law graduate Scott Aspinall reports.

    Author: Scott Aspinall
    Firm: Allens Arthur Robinson
    Date: January, 2004
    Times viewed: 656
  • Email Policy Precautions
    Recent case has shown that where an employer has a reasonable internet and email policy in place which has been communicated to employees, a termination for serious breach of the policy is likely to be upheld. This article sets out the guidelines of such a policy.
    Author: Joe Ganim, Jill Tudberry and Craig Cameron
    Firm: Hopgood Ganim Lawyers
    Date: January, 2004
    Times viewed: 788
  • The Risk for Employers when using Labour Hire
    Employers have traditionally used labour hire to simplify the issues relative to having a workforce, however this may not always be the case. Like any form of workforce engagement there are risks. This article is a summary of prevalent types of claims that can be made by a labour hire employee that may result in all or part of the liability resting with the host employer.
    Author: Joe Ganim, Jill Tudberry and Craig Cameron
    Firm: Hopgood Ganim Lawyers
    Date: January, 2004
    Times viewed: 619
  • Executive Remuneration - Best Practice Principles and Guidelines
    Following recent much publicised issues surrounding executive remuneration, the Business Council of Australia has released the "Executive Remuneration: Best Practice Principles and Guide".
    Author: Joe Ganim, Jill Tudberry, and Craig Cameron
    Firm: Hopgood Ganim Lawyers
    Date: January, 2004
    Times viewed: 399
  • Conflict in test for determining if agreements can be certified
    One of the prerequisites for the certification of an agreement under the Workplace Relations Act 1996 (Cth) is that the agreement must concern matters pertaining to the relationship between the employer and employees covered by the agreement (see section 170LI). A recent AIRC decision concluded that each clause in the agreement need not pertain to the requisite relationship provided that the agreement 'as a whole' does so.
    Author: Paul Burns and Julian Clarke
    Firm: Freehills
    Date: December, 2003
    Times viewed: 252
  • AIRC confirms freedom of choice in bargaining
    In an important decision, the Full Bench of the Australian Industrial Relations Commission (AIRC) has provided some guidance on the AIRC's capacity to make orders about the bargaining process.
    Author: Chris Gardner
    Firm: Freehills
    Date: December, 2003
    Times viewed: 310
  • Victoria in Transition
    2004 is likely to see many Victorian employers find themselves in unfamiliar territory, confronted with the financial, administrative and legal realities of a unitary industrial relations system which will see approximately 350 000 Victorian employees gain access to the federal award safety net.
    Author: Kathy Dalton and Michaela Moloney
    Firm: Herbert Geer
    Date: December, 2003
    Times viewed: 459
  • The deal is done – Victorian employers prepare for the imposition of industry award terms
    The Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 (the Bill) was passed through the House of Representatives on 26 November 2003, and looks set to pass the Senate in coming weeks. This article provides a summary of the impending changes.
    Author: Stuart Kollmorgen and Dan Feldman
    Firm: Deacons
    Date: December, 2003
    Times viewed: 321
  • Are you paying your staff correctly?
    The WA Government has announced that it is commencing a new campaign to investigate whether the hospitality industry in Western Australia has improved its past poor record in paying correct award wages. Employers need to ensure that they identify and conform to relevant industrial awards (Awards) to avoid prosecution.
    Author: Leanne Nickels and Ben Walker
    Firm: Deacons
    Date: December, 2003
    Times viewed: 312
  • Federal Government continues workplace reform agenda
    The Commonwealth Government has recently proposed further amendments to its workplace relations legislation.
    Author: John Naughton
    Firm: Allens Arthur Robinson
    Date: December, 2003
    Times viewed: 680
  • A limit on unfair contracts at last?
    A recent decision by the Supreme Court of New South Wales takes a much narrower view of the unfair contracts jurisdiction than the Industrial Relations Commission of New South Wales. The decision may offer employers some assistance in defending an unfair breach of contract claim.
    Author: Andrew Cardell-Rees
    Firm: Allens Arthur Robinson
    Date: December, 2003
    Times viewed: 607
  • When can an employer terminate an expired certified agreement?
    In a recent decision of the Australian Industrial Relations Commission (AIRC), Commissioner Whelan has found that it would be contrary to the public interest to terminate an expired agreement under section 170MH of the Workplace Relations Act 1996 (Cth) (WR Act) where such termination would result in uncertainty about the workers' contingent entitlements.
    Author:
    Firm: Freehills
    Date: November, 2003
    Times viewed: 442
  • Part-time work after maternity leave
    A recent decision of the Federal Magistrates Court1 adds to the growing body of case law that requires employers to reasonably accommodate requests for part-time work on return from parental leave. Rosemary Bryant-Smith reports.
    Author: Rosemary Bryant-Smith
    Firm: Allens Arthur Robinson
    Date: November, 2003
    Times viewed: 535
  • Not such a super result for casuals
    The High Court has weighed into the debate over compulsory superannuation contributions for casuals, deciding that only hours remunerated at the base rate of pay should be taken into account. Jamie Wells reports.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: November, 2003
    Times viewed: 584
  • Short-term 'Casuals' Win the Right to Make an Unfair Dismissal Claim
    A Full Bench of the Australian Industrial Relations Commission (AIRC) has departed from previous authority and held that an employee (in this case a waitress) performing regular and systematic work but with less than a year of service was entitled to make an unfair dismissal claim. However, the recent passage of the Workplace Relations (Fair Termination) Bill through both Houses of Parliament may mean this is only a fleeting opportunity for casuals.
    Author: Paul Burns
    Firm: Freehills
    Date: October, 2003
    Times viewed: 460
  • New hurdle to terminating certified agreements
    The Australian Industrial Relations Commission has refused to terminate an expired certified agreement and, in doing so, expanded the applicable test. Employers may now need to consider the impact of termination on the entitlements of employees.1 Jonathan Morley reports.
    Author: Jonathan Morley
    Firm: Allens Arthur Robinson
    Date: October, 2003
    Times viewed: 435
  • The ongoing cost of restructuring
    Controversy continues to surround restructuring as a means of reducing union influence in the workplace. Jamie Wells reviews a Federal Court decision involving a dispute about freedom of association.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: October, 2003
    Times viewed: 543
  • Redefining redundancy on transmission of business
    The Termination, Change and Redundancy case (1984) 8 IR 34 crystallised the law at that time with respect to redundancy and has been subsequently adapted by countless industrial instruments.
    Firm: Hopgood Ganim Lawyers
    Date: October, 2003
    Times viewed: 360
  • Holiday or mortgage? Cashing in long service leave entitlements
    A recent decision by the Queensland Industrial Relations Commission (Commission) allowing an employee in financial hardship to cash in his long service leave to use as a deposit for a house could have significant implications for Queensland employers. This update covers what constitutes financial hardship in this situation and how employers may benefit in the future.
    Author: Martin Osbourne and Monica Taylor
    Firm: Deacons
    Date: October, 2003
    Times viewed: 559
  • Tribunal’s findings sound warning bells for hotel industry employers
    A recent decision of a NSW Tribunal will have implications for employers in the hotel industry throughout Australia. Policies in relation to sexual harassment and discrimination will need to be reviewed to minimise the possibility of future claims.

    Author: Workplace Relations Team
    Firm: Ebsworth & Ebsworth
    Date: September, 2003
    Times viewed: 539
  • Have We Agreed on Everything?
    When entering into a contract of employment with an individual employee it is crucial to ensure that all issues are covered by the terms of the contract. A recent appeal decision of the Full Court of the Federal Court
    confirms that it is just as important to do so when negotiating certified agreements.
    Author: Kathryn Dalton and Simone Szalmuk-Singer
    Firm: Herbert Geer
    Date: September, 2003
    Times viewed: 300
  • Yet More Stress...
    Did you know that the way in which you conduct your disciplinary and termination procedure could not only affect your ability to defend an unfair dismissal or discrimination claim, but also a WorkCover claim?
    Author: Noel Callcott
    Firm: Herbert Geer
    Date: September, 2003
    Times viewed: 561
  • Maternity Leave - So She Wants to Return to Work Part-time?
    The decision of the Federal Magistrates’ Court confirms an employer’s duty to make all reasonable efforts to accommodate female employees who wish to return to part-time work at the conclusion of their maternity leave (Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209 (6 August 2003)).
    Author: Kathryn Dalton and Simone Szalmuk-Singer
    Firm: Herbert Geer
    Date: September, 2003
    Times viewed: 540
  • Returning to work after maternity leave
    Managing maternity leave is an important feature of good human resources management. The following case illustrates the importance of managing maternity leave appropriately.
    Author: Rick Catanazariti and Tamara Kingsley
    Firm: Phillips Fox
    Date: September, 2003
    Times viewed: 629
  • Accidents in the workplace: A new way to notify
    Employers and occupiers need to be aware of important changes to requirements to notify WorkCover about workplace accidents under the Occupational Health & Safety Act 2000 (NSW) (OHS Act) and Occupational Health and Safety Regulation 2001 (NSW) (OHS Regulation).
    Author: Andrew Saxton and Daniel Miller
    Firm: Ebsworth & Ebsworth
    Date: September, 2003
    Times viewed: 661
  • Labour hire companies and union membership
    Employees of labour hire companies can be eligible for union membership, even if not directly employed in the relevant industry. In recognising eligibility, the Australian Industrial Relations Commission has confirmed that it will focus on the activities of the employees.
    Author: Jonathan Morley
    Firm: Allens Arthur Robinson
    Date: September, 2003
    Times viewed: 1533
  • Commission refuses to certify agreements
    The AIRC has recently refused to certify agreements containing provisions relating to the use of contractors and union right of entry. For HR practitioners involved in enterprise bargaining, this legal update explains why the Commission refused to certify these, and the implications for drafting clauses in such agreements made with unions.
    Author: David McLaughlin
    Firm: Deacons
    Date: September, 2003
    Times viewed: 367
  • Emwest revisited – still no rest for employers
    The Full Court has now handed down its decision in the Emwest case, rejecting the appeal and upholding the union’s right to take lawful industrial action during the life of a certified agreement. In the wake of this decision, employers will need to ensure all certified agreements expressly state that further claims and industrial action cannot be pursued during the life of an agreement.
    Author: Andrew Maher
    Firm: Deacons
    Date: September, 2003
    Times viewed: 335
  • Damages awarded for breach of privacy
    A Queensland court recently created a new Australian tort of invasion of privacy, after awarding compensation to a woman the court found had been stalked and harassed.
    Author: Suzanne Weingott
    Firm: Allens Arthur Robinson
    Date: September, 2003
    Times viewed: 994
  • Can Australian industrial awards bind foreign ship owners and foreign crew?
    Recently the High Court was asked to determine whether or not the Australian Industrial Relations Commission had jurisdiction to make an industrial award about the terms and conditions of employment in relation to a ship in Australia that was foreign owned and using foreign citizens as its crew.
    Author: Rick Catanzariti
    Firm: Phillips Fox
    Date: September, 2003
    Times viewed: 393
  • Full Bench Upholds Emwest Decision
    On 15 August 2003, the Full Bench of the Federal Court upheld the decision of Justice Kenny in Emwest Products v AMWU [2002] FCA 61.

    In Australian Industry Group v AMWU [2003] FCAFC 183, the Full Bench determined that section 170MN of the Workplace Relations Act 1996 (Cth) does not prohibit employees taking protected industrial action during the nominal life of a certified agreement in support of claims outside the scope of that agreement.

    Author: Kathryn Edghill
    Firm: Corrs Chambers Westgarth
    Date: September, 2003
    Times viewed: 323
  • Transmission of business
    An incoming employer may inherit the industrial agreements of an outgoing employer, even where there is no direct relationship or transaction between the incoming and outgoing employers. The decision of the Full Federal Court in Gribbles Radiology Pty Ltd v Health Services Union of Australia has important implications for the due diligence process involved in the transmission of a business.
    Author: Peter Liaw
    Firm: Allens Arthur Robinson
    Date: August, 2003
    Times viewed: 702
  • ‘CSL Pacific’ – Maritime Unions Fail to Join CSL to Australian Award
    In an earlier article, we reported on the win in the High Court of Australia by the maritime unions in their ongoing industrial campaign against CSL Pacific Shipping Incorporated (CSL).

    We commented that the case would return to the AIRC for determination of the substantive application and that similar applications were pending against other foreign owners.

    The AIRC has now determined, at least in part, the unions’ substantive application in the CSL case.
    Author: Drew James, Damian Sloan and Craig Carter
    Firm: Ebsworth & Ebsworth
    Date: August, 2003
    Times viewed: 503
  • High Court Win for Maritime Unions in ‘CSL Pacific’
    In a unanimous judgment delivered on 7 August 2003, the Full Bench of the High Court of Australia rejected an appeal by CSL Pacific Shipping Inc in the long running dispute involving the cement carrier CSL Pacific.
    Author: Drew James, Damian Sloan and Craig Carter
    Firm: Ebsworth & Ebsworth
    Date: August, 2003
    Times viewed: 489
  • Return to Work Following Maternity Leave - Risks for Employers
    Last week, a Federal Magistrates Court awarded $40,000 to a female manager because her employer refused to accommodate her in part-time work following her return from maternity leave. Building on similar recent decisions, this case highlights the need for employers to handle return to work issues appropriately or risk large awards against them (which have been as high as $95,000).
    Author: Stuart Kollmorgen and Megan Reeve
    Firm: Deacons
    Date: August, 2003
    Times viewed: 490
  • Contempt Bill boosts Commission's powers
    Orders of the Australian Industrial Relations Commission will have sharper teeth if proposed new legislation before Federal Parliament passes and allows for offenders to be imprisoned for contempt. Sarah Holthusen reports.
    Author: Sarah Holthusen
    Firm: Allens Arthur Robinson
    Date: August, 2003
    Times viewed: 468
  • Employee Entitlements in Receiverships
    Judgment for McEvoy v Incat Tasmania and others was handed down in the Federal Court on 1 August 2003 and has clarified the law regarding the application of section 433 of the Corporations Act 2001 (Cth) in a receivership.
    Author: Steven Palmer
    Firm: Deacons
    Date: August, 2003
    Times viewed: 496
  • 'Nervous Shock': Extended Duty of Care for Employers
    A recent High Court decision has further extended the boundaries for 'nervous shock' claims, by finding that an employer has a duty of care to prevent its employee's children suffering psychiatric harm as a result of injuries to the employee at the workplace. This duty can arise even if the children did not witness the event and are only told about the accident.
    Author: Miriam Morgan-Hobbs
    Firm: Allens Arthur Robinson
    Date: August, 2003
    Times viewed: 801
  • Short-term Variation of Enterprise Agreement
    The Australian Industrial Relations Commission has approved an application by a company to vary its certified agreement because of a downturn in business, even though the variation left some employees with a pay cut.
    Author: Rosemary Bryant-Smith and Alice Cope
    Firm: Allens Arthur Robinson
    Date: August, 2003
    Times viewed: 453
  • Employees v Independent Contractors
    A recent decision of the Full Bench of the Australian Industrial Relations Commission (AIRC) in Abdalla, Abraham v Viewdaze Pty Ltd t/as Malta Travel, Unreported, AIRC, Print PR927971, 14 May 2003 has re-iterated the principles to be applied when determining whether a worker is an employee or an independent contractor.
    Author: Peta Bissell
    Firm: Freehills
    Date: July, 2003
    Times viewed: 554
  • The New South Wales Unfair Contracts Jurisdiction: Decisions on Scope of Orders and Mitigation
    Section 106 of the Industrial Relations Act 1996 (NSW) (IR Act) provides the Industrial Relations Commission of New South Wales in Court Session (IRC) with the power to vary or render void contracts, arrangements or collateral arrangements pursuant to which work is performed in an industry in New South Wales. Two recent decisions in New South Wales promise to have a significant impact on the way employers are affected by s.106 proceedings.
    Author: Penny Thew and Glenn Fredericks
    Firm: Freehills
    Date: July, 2003
    Times viewed: 664
  • Employee Share Option Plans Need Careful Consideration
    The use of employee share option plans (ESOPs) by listed companies is reasonably common as a means of attracting staff and giving incentives for employees to improve or maintain high levels of performance. In recent years, increasing numbers of unlisted companies, particularly those backed by private equity investment, have also introduced ESOPs to help them offer remuneration packages which enable them to compete with larger companies for talented employees.
    Author: Kon Mellos and Peter Dunne
    Firm: Freehills
    Date: July, 2003
    Times viewed: 1183
  • Resignation and Pro Rata Long Service Leave
    A recent decision of the Queensland Industrial Relations Commission addresses the issue of whether pro rata long service leave should be paid to an employee who resigns because of a domestic or other pressing necessity.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: July, 2003
    Times viewed: 1463
  • Unfair Contract Claims Survive Amendments
    Recent amendments to the Industrial Relations Act 1996 (NSW) were widely regarded as significantly limiting the ability of employees to bring claims under the unfair contracts jurisdiction. However, the reality has proven to be quite different.
    Author: Deegan Fitzharris
    Firm: Allens Arthur Robinson
    Date: July, 2003
    Times viewed: 504
  • Workplace Dress Codes: If it's OK for the Girls, it's OK for the Boys
    It is not uncommon for employers to set standards of dress for the workplace which are reflective of the company’s culture. However, many employers tend to differentiate between appropriate attire for men and that for women. Employers beware: making such distinctions on the basis of sex will in many instances be seen to be in breach of anti-discrimination legislation.
    Author: Kathryn Dalton and Simone Szalmuk
    Firm: Herbert Geer
    Date: June, 2003
    Times viewed: 1100
  • PANdemonium: A Bitter Pill to Swallow - What Happens to the Employees?
    How would your business manage its workforce if a catastrophic drop in demand for your product or service resulted in reduced or no work? Do your current employment arrangements effectively provide for the business’ needs in times of crisis? Here are some suggestions that could bring your business back from the brink.

    Author: Kathryn Dalton and Simone Szalmuk
    Firm: Herbert Geer
    Date: June, 2003
    Times viewed: 507
  • AWAs Live On
    The Australian Industrial Relations Commission recently refused to terminate a series of Australian Workplace Agreements because of uncertainty of default arrangements in the workplace, and the potential risk of industrial disputation.
    Author: Laura Colavizza
    Firm: Allens Arthur Robinson
    Date: June, 2003
    Times viewed: 449
  • Preference Clauses are Out
    The Australian Industrial Relations Commission has confirmed that preference clauses will be removed from certified agreements, but encouragement clauses are legitimate, confirming employees' freedom of association.

    Author: Leo Whiteley
    Firm: Allens Arthur Robinson
    Date: June, 2003
    Times viewed: 435
  • Medical Certificates – Can Employers Require More?
    Unhelpful medical certificates that simply state an employee is 'sick' or has an 'illness' have long frustrated employers, who feel they cannot ask for more information or challenge the certificate if the genuineness of the claim is in doubt. But a recent Australian Industrial Relations Commission decision shows that it is aware of this problem and is willing to address it, if given the right opportunity.
    Author: Suzanne Weingott
    Firm: Allens Arthur Robinson
    Date: June, 2003
    Times viewed: 799
  • The Cole Royal Commission Delivers its Final Report
    In the first of a two-part series examining the final report of the Cole Royal Commission into the building and construction industry, Partner David Cross looks at the main recommendations in terms of industrial relations.

    Author: David Cross
    Firm: Allens Arthur Robinson
    Date: May, 2003
    Times viewed: 507
  • Fraudsters dodge damages
    Employers cannot recover exemplary or punitive damages for an employee's breach of duty, according to the NSW Court of Appeal.
    Author: Sarah Holthusen
    Firm: Allens Arthur Robinson
    Date: May, 2003
    Times viewed: 586
  • Implicated by implied terms
    Special care is needed when drafting enterprise bargaining agreements now that the Federal Court has accepted it is appropriate to imply terms in some circumstances. Jamie Wells reports.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: May, 2003
    Times viewed: 760
  • Any excess baggage?
    Setting up a new business can have unexpected hurdles, especially if a link can be established with a former business at the same premises. Leo Whiteley reports.
    Author: Leo Whiteley
    Firm: Allens Arthur Robinson
    Date: May, 2003
    Times viewed: 491
  • Engagement of temporary flight attendants to cover strike not industrial action
    In a recent decision, the Australian Industrial Relations Commission (AIRC) refused to issue orders that would have resulted in Qantas Airways Ltd (Qantas) being prevented from using casual or temporary flight attendants to cover services affected by protected industrial action.
    Author: Nicholas Ogilvie
    Firm: Freehills
    Date: May, 2003
    Times viewed: 358
  • Conflicts of interest for scientific researchers
    If you engage a researcher to conduct research and development, you should be wary of conflicts of interest, as Alex Fleming explains.
    Author: Alex Fleming
    Firm: Allens Arthur Robinson
    Date: April, 2003
    Times viewed: 464
  • Qualifying periods and probationary employment: is there a difference?
    Recent Australian Industrial Relations Commission (“Commission”) judgments leave it unclear whether a probationary period of employment agreed between the parties is the same as or different to the qualifying period of employment required by the Federal Workplace Relations Act 1996(“WR Act”).
    Author: Alan Grinsell-Jones
    Firm: Deacons
    Date: April, 2003
    Times viewed: 1418
  • Garden leave a viable option once more
    The Federal Court has confirmed that employers will usually be entitled to direct a terminating employee to take garden leave during the notice period.1 Suzanne Weingott reports.
    Author: Suzanne Weingott
    Firm: Allens Arthur Robinson
    Date: April, 2003
    Times viewed: 1067
  • Gribbles case
    The Full Federal Court has handed down another long awaited transmission of business decision in the case of Gribbles Radiology Pty Ltd v Health Services Union of Australia. The Full Court found that there was a transmission of business under section 149(1)(d) of the Workplace Relations Act between two outsource providers of radiology services even though there was no direct link between them.
    Author: Rick Catanzariti
    Firm: Phillips Fox
    Date: April, 2003
    Times viewed: 340
  • So you've got a problem? Complaints and grievances in Australian workplaces
    Complaints, grievances and disputes are on the rise in Australian workplaces. Many disputes are ending up before quasi-judicial bodies such as anti-discrimination boards, federal and state industrial relations commissions and occupational health and safety tribunals, as well as in the courts themselves.
    Author: Kate Jenkins
    Firm: Freehills
    Date: April, 2003
    Times viewed: 526
  • Privacy invades employee relations
    The Cadbury Scheweppes/Mitre 10 certification decision illustrates just how privacy requirements can infringe on HR/IR.
    Author: Karl Scott
    Firm: redchip lawyers
    Date: April, 2003
    Times viewed: 530
  • The complexity of executive employment in the spotlight
    Hiring and firing senior executives can present employers with a minefield of potentially explosive questions. In order to maintain sanity, it is crucial to consider a number of key issues at every stage of the employment relationship, particularly when creating or interpreting the employment contract.

    Author: Nicholas Ruskin
    Firm: Phillips Fox
    Date: April, 2003
    Times viewed: 1101
  • What is an 'industrial dispute'?
    Sarah Holthusen reports on a recent decision of the Australian Industrial Relations Commission that considers the genuineness of a paper dispute.
    Author: Sarah Holthusen
    Firm: Allens Arthur Robinson
    Date: March, 2003
    Times viewed: 648
  • Illegal acts of employees - are you liable?
    On 6 February 2003, the High Court considered the issue of vicarious liability in the case of New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4 (6 February 2003).
    Author: Jill Tudberry
    Firm: Hopgood Ganim Lawyers
    Date: March, 2003
    Times viewed: 680
  • On-sale of shares issued under employee share and option plans
    Peter Jones and Daniel Cunningham explain that employers need to take particular steps to ensure that their employees can sell recently issued shares.
    Author: Peter Jones and Daniel Cunningham
    Firm: Allens Arthur Robinson
    Date: March, 2003
    Times viewed: 659
  • Workplace policies: are they binding?
    David Cross reviews two recent cases of the Australian Industrial Relations Commission that illustrate the difficulties employers face in arguing that policy handbooks form a part of a contract of employment.
    Author: David Cross
    Firm: Allens Arthur Robinson
    Date: March, 2003
    Times viewed: 753
  • Making disputes procedures work
    Even the best industrial relations practitioner cannot draft an enterprise agreement that covers every workplace contingency over the life of the agreement. Most agreements last for two to three years. The workplace is constantly changing with internal and external pressures, many unforseen at the time the agreement is made.
    Author: Richard Dalton
    Firm: Freehills
    Date: February, 2003
    Times viewed: 605
  • Team members expected to pull their weight
    Employers are not obliged to alter a roster to make exceptions for employees with disabilities. Suzanne Weingott reviews the decision of the Full Federal Court in Cosma v Qantas Airways Ltd.
    Author: Suzanne Weingott
    Firm: Allens Arthur Robinson
    Date: February, 2003
    Times viewed: 612
  • A matter of personal responsibility - not just something for the company to take care of
    In late 2002, the Federal Court handed down a decision highlighting that the courts and the regulators consider compliance is something for individuals within a company as well as the companies themselves.
    Author: Eleanor Scacco
    Firm: Freehills
    Date: February, 2003
    Times viewed: 361
  • Protected picketing still a possibility
    Unions will be encouraged to pursue a strategy of lawful picketing as a species of protected action after a Federal Court ruled that picketing can be industrial action.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: February, 2003
    Times viewed: 786
  • ETPs explained
    The Australian Taxation Office has issued a draft tax ruling that clarifies when a payment to an employee is an eligible termination payment attracting concessional tax treatment, reports Suzanne Weingott.
    Author: Suzanne Weingott
    Firm: Allens Arthur Robinson
    Date: February, 2003
    Times viewed: 569
  • Bargaining fee clauses in NSW
    A Full Bench of the NSW Industrial Relations Commission has determined that a bargaining agent's fee clause is a legitimate matter, able to be part of a NSW enterprise agreement. Whether such clauses are allowable must be considered on a case by case basis. Paul Moorhouse reviews the decision.
    Author: Paul Moorhouse
    Firm: Allens Arthur Robinson
    Date: February, 2003
    Times viewed: 553
  • Unfair contract jurisdiction
    Two recent decisions of the NSW Industrial Relations Commission have confirmed that federal award employees can bring unfair contract claims under section 106 of the Industrial Relations Act 1996 (NSW). Paul Moorhouse reports.
    Author: Paul Moorhouse
    Firm: Allens Arthur Robinson
    Date: January, 2003
    Times viewed: 667
  • Bargaining fee stand-off continues
    A Full Bench of the Australian Industrial Relations Commission has refused to accept demands for bargaining agent's fees as legitimate matters for enterprise bargaining, further driving a wedge between the approaches of the Commission and the Federal Court. Jamie Wells reports.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: January, 2003
    Times viewed: 514
  • Patents - Is it time to retread your thinking on employee inventions?
    The Patent Office holds that an employer will not in every situation have rights of assignment to an invention of an employee.
    Author: Robert Cooper and Clare Cunliffe
    Firm: Allens Arthur Robinson
    Date: January, 2003
    Times viewed: 605
  • Maternity leave and work/life balance
    Employers should be taking little comfort from the Howard Government’s apparent internal wrangling and division over the issue of paid maternity leave. It is one that will ultimately become reality for businesses and as such employers should be taking the opportunity now to consider how they will approach and address it.
    Author: Seamus Burke
    Firm: Abbott Tout
    Date: January, 2003
    Times viewed: 611
  • Family responsibilities, flexibility and work: striking the balance
    Unilateral reduction by an employer of its employee’s hours can constitute dismissal within the meaning of the Sex Discrimination Act 1984 (Cth), even if the employee works in a new position.
    Employers who do not have clear objective reasons for not having a flexible work practice policy can be found to have breached equal employment opportunity legislation.
    Author: Geraldine Dann
    Firm: Freehills
    Date: November, 2002
    Times viewed: 653
  • Maternity leave and return to work: obligations on employers
    Two recent Federal Court decisions have emphasised that under State and federal equal opportunity legislation, employers have a two-fold obligation to employees returning from maternity leave.
    Author: Peta Bissell
    Firm: Freehills
    Date: November, 2002
    Times viewed: 1914
  • Quick response to industrial action placed at risk
    The fast track method of ending industrial disputes by employers going straight to the Supreme Court has been put in doubt by recent Federal Court criticism. Jamie Wells reviews the implications.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: October, 2002
    Times viewed: 455
  • Unions and the thin edge of the IT wedge
    Most employers today have a significant IT component to their business whether as a core activity or in a supporting role. In the IT industry’s early stages it was dominated by a few young, highly skilled and motivated individuals who demanded high pay and flexible working conditions – hardly fertile ground for union activity. However, as the industry has matured and become increasingly mainstream, unions have been eyeing it hungrily. The industrial situation was ripe for change.
    Author: Jeff Krins
    Firm: Deacons
    Date: October, 2002
    Times viewed: 331
  • Can employers control what employees say?
    It is commonplace for modern employment contracts and policies to include clauses restricting employees’ public comments about their employer or its business and to require employees to act at all times in the best interests of the employer. The common law implies into every employment contract a “duty of good faith” for employees. These matters are part of the “control” that supposedly lies at the heart of every employment relationship.
    Author: Neil Napper and Ross Fox
    Firm: Deacons
    Date: October, 2002
    Times viewed: 402
  • Overturning agency agreements
    Financial services industry participants’ may not be aware that the Industrial Relations Commission can play a significant role in renewing contracts with distribution.
    Author: Damian Sloan
    Firm: Ebsworth & Ebsworth
    Date: October, 2002
    Times viewed: 742
  • Employee Entitlements to Take Priority Over Secured Creditors?
    On 31 July 2002 Federal Treasury released a Discussion Paper proposing that some employee entitlements take priority over secured creditors in a winding up of a company under a “maximum priority” rule to be introduced into the Corporations Act. This would dramatically change the current settled position of secured creditors.
    Author: Maria Polczynski and Peter Farthing
    Firm: Henry Davis York
    Date: October, 2002
    Times viewed: 553
  • Restraints can work but careful planning pays
    The value of a carefully drafted restraint clause has been highlighted recently, with the Victorian Supreme Court enforcing a clause in an employment contract keeping two stockbrokers out of the market for three months after resignation.
    Author: Suzanne Weingott
    Firm: Allens Arthur Robinson
    Date: October, 2002
    Times viewed: 458
  • More uncertainty on bargaining fees
    Uncertainty reigns over enterprise bargaining as the Federal Court and the Australian Industrial Relations Commission continue to disagree about the content of certified agreements. The Commission has chosen not to follow the Federal Court's lead, declining to certify an agreement with a clause that deals with the payment of union bargaining fees.
    Author: Deegan Fitzharris
    Firm: Allens Arthur Robinson
    Date: October, 2002
    Times viewed: 470
  • International arbitration agreements
    Australian courts traditionally have looked very closely at arbitration agreement wording in any attempt to stay court proceedings by a party wishing to have a dispute arbitrated. Trudy Steedman looks at a recent Tasmanian case that confirms this approach and highlights the fact that even potentially inconvenient outcomes for the parties have not motivated the courts to change their position.
    Author: Trudy Steedman
    Firm: Allens Arthur Robinson
    Date: October, 2002
    Times viewed: 780
  • The reasonable hours test case - what does it mean?
    On 23 July 2002 the Australian Industrial Relations Commission handed down its decision in relation to the ACTU’s reasonable hours application. The ACTU had claimed that the following three clauses should be inserted in Federal awards, as a test case standard.
    Author: Katie Ellinson
    Firm: Deacons
    Date: September, 2002
    Times viewed: 903
  • What Are Reasonable Hours?
    Now that it has been accepted by the Full Bench of the Australian Industrial Relations Commission ("AIRC") that working hours have changed significantly over recent decades, one might ask the question, "What are reasonable hours?" and what do they mean for workplace relations.
    Author: Bryan Belling, Gary Punch and Stephanie Vass
    Firm: Abbott Tout
    Date: September, 2002
    Times viewed: 394
  • Reasonable hours test case decision
    A Full Bench of the Australian Industrial Relations Commission handed down its decision on the reasonable hours test case on 23 July 2002. The Full Bench rejected most of the Australian Council of Trade Union’s (ACTU claim, but decided to award a more limited test case provision regarding an employee’s right to refuse overtime.
    Author: Graeme Watson
    Firm: Freehills
    Date: September, 2002
    Times viewed: 377
  • Recent Federal Court decision has implications for outsourcing
    Justice Branson of the Federal Court (Court) recently held that the sale of a ship to a related company, and replacing the ship’s Australian crew with a Ukrainian crew on lower pay rates and conditions, was not a breach of the freedom of association provisions of the Workplace Relations Act 1996 (Cth) (WR Act).
    Author: Delia Keag and Paul Volich
    Firm: Freehills
    Date: September, 2002
    Times viewed: 476
  • Increased Rights for Employees
    An outline of the amendments made to Industrial Relations legislation by the Industrial Relations Amendment Act 2001.
    Author: Johan Myburgh
    Firm: Hopgood Ganim Lawyers
    Date: August, 2002
    Times viewed: 480
  • Beware the inventive Marketing Manager!
    This article discusses issues around automatic ownership of intellectual property generated by employees. Despite a common assumption by employers that they will own staff-generated IP, this is not necessarily the case.
    Author: Jeff Bergmann
    Firm: Allens Arthur Robinson
    Date: August, 2002
    Times viewed: 515
  • Privacy and commercial transactions
    The Privacy Amendment (Private Sector) Act 2000 (Cth) (Act) came into operation in Australia on 21 December 2001. The Act implements 10 National Privacy Principles (NPPs) which regulate the handling of personal information by private sector organisations. This article demonstrates how some of the privacy implications affect the sale or purchase of a business, particularly in relation to employee personal information.
    Author: John Cooper , Sue Coleman and Catherine Dixon
    Firm: Freehills
    Date: August, 2002
    Times viewed: 499
  • Union official or employee: Which role comes first?
    A recent Federal Court decision has considered the ‘right’ of an employee to speak to the media. This decision highlights the difficulties employers may face when dealing with conflicts between an employee’s union role and the employee’s duties to his or her employer.
    Author: Kerryn Tredwell and John Tuck
    Firm: Freehills
    Date: August, 2002
    Times viewed: 381
  • Protection of corporate reputation
    This highlights some common situations in which reputational issues arise for corporations, businesses, and professional service providers.
    Author: Roy Williams
    Firm: Allens Arthur Robinson
    Date: August, 2002
    Times viewed: 930
  • Promises, promises ...
    Misleading statements made by an employer, or a recruitment agent acting on behalf of an employer, can expose the employer to claims from employees relying on those statements to their detriment.
    Author: Paul Moorhouse
    Firm: Allens Arthur Robinson
    Date: August, 2002
    Times viewed: 477
  • Federal Court cleans up the Electrolux issue
    Employers have lost a valuable strategic edge in enterprise bargaining negotiations since the Federal Court confirmed a negotiating party's right to take protected action over a broad range of issues during enterprise bargaining.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: August, 2002
    Times viewed: 435
  • Privacy and the employment relationship
    A discussion of what is and is not exempt from the Federal Privacy Act as part of the employment relationship.
    Author: Lisa Matthews
    Date: July, 2002
    Times viewed: 654
  • Federal Court finds bargaining fee claims do not compromise protected action
    A Full Court of the Federal Court has determined that enterprise bargaining claims by unions for the inclusion of a bargaining agent’s fee in a proposed certified agreement do not render industrial action unprotected. The decision means that unions are free to make such claims against employers and take protected industrial action in support of them. The Federal Minister for Workplace Relations, Hon. Tony Abbott, has already foreshadowed that an appeal or amending legislation will be considered to override the effect of the decision.
    Firm: Freehills
    Date: July, 2002
    Times viewed: 378
  • Labour reform or regression in WA?
    The Labour Relations Reform Bill 2002 (WA) represents the first real attempt by a Labor government in Australia to roll-back the recent legislative trend towards the primacy of individual agreements in industrial relations. Michelle Barnes reviews the key aspects of the Bill.
    Author: Michelle Barnes
    Firm: Allens Arthur Robinson
    Date: July, 2002
    Times viewed: 607
  • Two caps on one head
    There is no inherent conflict between an employee holding a management position and supporting union claims at the same time, according to a recent Federal Court decision involving the ANZ Bank. Senior Associate Deegan Fitzharris reviews the case.
    Author: Deegan Fitzharris
    Firm: Allens Arthur Robinson
    Date: June, 2002
    Times viewed: 486
  • Redundancy Payments on Transfer of Business - Employers Beware….
    Employers who transmit employees to a new employer may, following a recent case, be liable for redundancy payments even if the employment was reasonably comparable – and this may be retrospective.
    Author: Stuart Kollmorgen and Karyn Palmer
    Firm: Deacons
    Date: June, 2002
    Times viewed: 556
  • Sexual Harassment - A Big Problem for Small Businesses
    Many of the sexual harassment complaints made in the last 12 months relate to small businesses. This article outlines why this is a problem and what can be done.
    Author: Clare Dowling
    Firm: Middletons Lawyers
    Date: May, 2002
    Times viewed: 609
  • Unions can take industrial action during the life of an enterprise agreement
    Justice Kenny of the Federal Court of Australia recently handed down a decision concerning the scope of s170MN of the Workplace Relations Act 1996 (Cth) (WR Act). The issue for consideration before the Court was whether a union could lawfully take industrial action against an employer in respect of matters that were not covered by the terms of an unexpired enterprise agreement.
    Author: Anthony Longland
    Firm: Freehills
    Date: May, 2002
    Times viewed: 293
  • Organisational change - It's all in the planning
    A decision to outsource a workplace function for the exclusive purpose of saving cost does not breach freedom of association laws, according to a decision of the Federal Court. Suzanne Weingott reviews the ruling.
    Author: Suzanne Weingott
    Firm: Allens Arthur Robinson
    Date: May, 2002
    Times viewed: 425
  • Post Employment Restraints
    An employer cannot make a covenant to protect itself against mere competition. The corollary of this is that an employee is entitled to use skill, experience and know-how acquired in the service of their former employer in legitimate competition. It is in the public interest that this should be so.
    Author: Stuart Kollmorgen and Sonia John
    Firm: Deacons
    Date: May, 2002
    Times viewed: 724
  • Changing Roles Mean New Responsibilities
    Doctors prescribed the wrong approach when attempting to negotiate employment terms with a private hospital.
    Author: Brian Thomas
    Firm: Ebsworth & Ebsworth
    Date: May, 2002
    Times viewed: 532
  • Employees Hit With Exemplary Damages
    In a legal first, the Supreme Court of New South Wales has held that two employees who breached their contractual and fiduciary duties of loyalty to their employer were liable to pay to their employer not only damages but exemplary damages, of $10,000 each (Digital Pulse Pty Limited v Harris & Ors [2002]NSWSC 33, Palmer J).
    Author: Fabian Flintoff
    Firm: Deacons
    Date: May, 2002
    Times viewed: 623
  • ESOP tax reform proposals
    In recent months, the Australian Venture Capital Association has participated in discussions with the Federal Government and industry representatives in relation to the reform of the tax treatment of employee share ownership plans, with particular emphasis on share option plans.
    Author: Ernest Chang
    Firm: Freehills
    Date: April, 2002
    Times viewed: 422
  • Employee expropriation of corporate business opportunities
    The recent decision in Digital Pulse Pty Ltd v Harris in the Equity Division of the Supreme Court of New South Wales (Palmer J, 8 February 2002) is a salutary reminder of the liability of employees who attempt to divert business opportunities which properly belong to their employer company to themselves or a third party in breach of their duties to the company.
    Author: Don Harding
    Firm: Freehills
    Date: April, 2002
    Times viewed: 359
  • Court Refuses to Make Fixed Term Contract a Continuing Contract
    Despite the fact that a fixed-term employment contract was clearly in breach of a certified agreement, the Federal Court has upheld the validity of the contract in a recent case.
    Author: Leanne Nickels
    Firm: Deacons
    Date: April, 2002
    Times viewed: 604
  • Strikes and Access to Common Law Remedies
    Section 166A of the Workplace Relations Act, 1996, places limits on the circumstances in which an employer may have access to common law courts in relation to conduct occurring in the course of industrial disputes.
    Author: Alan Grinsell-Jones
    Firm: Deacons
    Date: April, 2002
    Times viewed: 443
  • Employee Option Plans: the "can do" approach
    This articles takes a look at employee option plans in the context of unlisted companies, and dispels the myths surrounding them.
    Author:
    Firm: Abbott Tout
    Date: April, 2002
    Times viewed: 632
  • Union "Bargaining Fees"
    Two recent decisions have held that union bargaining fees in certified agreements are not in breach of "freedom of association" laws, but they do not relate to the relationship between employer and employee. In the first decision, the Australian Industrial relations Commission has upheld such clauses, while in the second the Federal Court has found them not to relate to the relationship between employer and employee and therefore incapable of being included in a certified agreement or supporting protected industrial action.
    Author:
    Firm: Deacons
    Date: March, 2002
    Times viewed: 320
  • Immediate Dismissal - When is it an option?
    Negligence at work and failure to comply with directions does NOT justify immediate dismissal. The Supreme Court of Victoria awarded a senior executive $156,836.91 in damages (for the employer's failure to give proper notice), together with long service leave entitlements, after the court ruled that his summary dismissal was not justified (Rankin v Marine Power International Pty Ltd) [2001] VSC 150 (21 May 2001).
    Author: Helen Karatasas
    Firm: Deacons
    Date: March, 2002
    Times viewed: 919
  • Tribunal deems council vehicle policy 'discriminatory'
    A council was found to have indirectly discriminated against five members of staff on the ground of sex when it provided some but not all assistant managers with the use of a council car. The council's car policy was found to have unreasonably disadvantaged female members of staff.
    Author:
    Firm: Freehills
    Date: March, 2002
    Times viewed: 453
  • Monetary compensation in unfair contract case
    The full bench of the New South Wales Industrial Relations Commission has confirmed that rigid principles cannot be applied in determining compensation in unfair contract cases. So the compensation ordered will largely come down to what the Commission considers just in the circumstances of the case.
    Author: Natalie Shaw
    Firm: Allens Arthur Robinson
    Date: March, 2002
    Times viewed: 789
  • Drug policy stones employer
    As an employer you should consider carefully the scope of your workplace policies before you act against an employee. A recent decision, in favour of an employee sacked for failing to take a drug test, illustrates why.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: March, 2002
    Times viewed: 666
  • Retrospective variation of an award
    A recent decision of the full bench of the Australian Industrial Relations Commission, illustrates the risk associated with adopting in-house employment arrangements which, although acceptable to both the employer and employees, breach award obligations.
    Author: Beth Turnbull
    Firm: Allens Arthur Robinson
    Date: March, 2002
    Times viewed: 578
  • Dayton v Coles Supermarket Pty Ltd
    This article looks at the case of Dayton v Coles Supermarkets Pty Ltd (New South Wales Court of Appeal, 1 June 2001) and the impact of section 9a of the Workers Compensation Act, which has recently been clouded with obscurity.
    Author: Heechung Sung
    Firm: Abbott Tout
    Date: March, 2002
    Times viewed: 565
  • An Employer Gets a Win:- Can Findings of one Judge in the Compensation Court be Binding on Another in the District Court?
    A recent decision in the Supreme Court of NSW has given an employer a rare win. In the matter of Beecham (Australia) Pty Limited v Periera (Supreme Court of NSW, Court of Appeal, unreported, 27 August 2001) the Court of Appeal set aside a judgment and verdict in favour of an injured employee and ordered a retrial. The case was primarily determined on principles of issue estoppel.
    Author: Brett McKenzie - Craig
    Firm: Abbott Tout
    Date: March, 2002
    Times viewed: 508
  • NZ court defines 'good faith' in redundancy situations
    A bried look at the first decision on redundancy and 'good faith' under the Employment Relations Act 2000 in New Zealand.
    Author: HR&IR Group
    Firm: Minter Ellison
    Date: March, 2002
    Times viewed: 438
  • HR's role in merger mania
    For HR professionals, it’s almost a cliché: ‘HR is critical to the success of any merger or acquisition’. Yet 80% of M&A’s still fail due to ‘people issues’. So why is there such a big gap between theory and practice?
    Author: Nick Pond and Jon Scriven
    Date: February, 2002
    Times viewed: 511
  • Court refuses to enforce restraint of trade
    It is not uncommon for employers to seek to restrain departing employees from working for a competitor. This is particularly so in cases where the employee has had access to an employer's trade secrets or has knowledge or specialised skills that are highly sought after. This article looks at a recent example where the courts refused to enforce such a clause.
    Author: Katherine Wirth
    Firm: Freehills
    Date: February, 2002
    Times viewed: 1584
  • Privacy compliance: common concerns for employers
    New Federal privacy laws affecting businesses in the private sector commenced operation on 21 December 2001, prompting many organisations to take steps to ensure their compliance. However, many employers have yet to address the need for privacy compliance. This article sets out some of the common issues faced by those who must now heed the legislation.
    Author: Catherine Goss and Catherine Dixon
    Firm: Freehills
    Date: February, 2002
    Times viewed: 550
  • More on NSW's unique unfair contract laws
    This analyses the contract law of NSW and how it means that some employers are reluctant to give references, out of a concern they could be held accountable for their ex-employees.
    Author: Dom Hodson
    Firm: Minter Ellison
    Date: February, 2002
    Times viewed: 585
  • Workplace relations
    Members of the Workplace Relations team review some important recent developments regarding planned redundancies, workplace confidentiality and superannuation for casual workers.
    Firm: Allens Arthur Robinson
    Date: January, 2002
    Times viewed: 618
  • NSW wants to change liability
    On 7 May 2002 the New South Wales Government released the Civil Liability Bill 2002. Senior Associate Mark Lindfield outlines the major reforms proposed by the draft Bill.
    Author: Mark Lindfield
    Firm: Allens Arthur Robinson
    Date: January, 2002
    Times viewed: 708
  • Protection of human genetic information - will Gattaca become reality?
    A discussion of The Australian Law Reform Commission and the Australian Health and Medical Research Council's recent analysis of the implications of developments in the collection, use and disclosure of genetic information for Australian employment law.
    Author: Katrina Tucker
    Firm: Allens Arthur Robinson
    Date: December, 2001
    Times viewed: 779
  • Taking a broad view of manufacturers’ obligations
    A recent decision of the Full Bench of the Industrial Relations Commission of New South Wales has redefined the duties of suppliers and manufacturers of plant and equipment.
    Author: Barry Sherriff
    Firm: Freehills
    Date: December, 2001
    Times viewed: 537
  • Manusafe claims upheld, but bargaining agents’ fees invalid
    The Federal Court decision in Electrolux Home Products Pty Ltd v AWU found that union claims for a bargaining agent’s fees are not valid, thereby casting doubt on the validity of certified agreements which contain such provisions.
    Author: Paul Burns
    Firm: Freehills
    Date: November, 2001
    Times viewed: 445
  • No discrimination in work from home claim
    Does an employer discriminate against employees with family commitments by refusing to allow them to work from home.
    Author:
    Firm: Allens Arthur Robinson
    Date: November, 2001
    Times viewed: 638
  • Downsizing - good or bad, it’s here to stay
    Corporate restructuring has become the fast track to business success in Australia. With staff the highest cost factor for most organisations, getting the balance right between over-resourced and under-resourced is critical.
    Author: CPD - Centre for Professional Development
    Date: November, 2001
    Times viewed: 847
  • Surveillance in the work place
    Intrusive surveillance can cause problems in the workplace.
    Author: Belinda Harding
    Firm: Abbott Tout
    Date: October, 2001
    Times viewed: 1634
  • Changes to Federal unfair dismissal laws
    The Workplace Relations Amendment (Termination of Employment) Act  commenced on 30 August 2001 resulting in chanages to Federal unfair dismissal laws.
    Firm: Minter Ellison
    Date: October, 2001
    Times viewed: 3095
  • Key family responsibilities decision now in doubt after successful appeal
    Requests for flexible work arrangements from employees with family are on the rise. Recent court decisions have begun to shape how these requests are to be determined.
    Author: Tony Wood
    Firm: Freehills
    Date: September, 2001
    Times viewed: 628
  • Defining employees and independent contractors
    Examines the High Court decision in Hollis v Vabu Pty Ltd  - assists in defining employees and independent contractors.
    Author: Employee Relations Group
    Firm: Freehills
    Date: August, 2001
    Times viewed: 448
  • Workers reinstated due to lack of transparency in redundancy procedures
    The Industrial Relations Commission has ordered the reinstatement of 11 miners retrenched in October 1998.
    Firm: Allens Arthur Robinson
    Date: August, 2001
    Times viewed: 482
  • Duress, AWAs and outsourcing in the workplace
    Can an offer of employment that's subject to the employee entering into an Australian Workplace Agreement amount to duress? According to the Federal Court's decision in Schanka, it can if the offer is made in the context of an outsourcing at the workplace.
    Firm: Allens Arthur Robinson
    Date: July, 2001
    Times viewed: 471
  • Acquiring a business - what are your obligations to employees?
    Management needs to be aware of the legal obligations of employers involved in a merger, takeover, acquisition or joint venture.
    Firm: Middletons Lawyers
    Date: April, 2001
    Times viewed: 694
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